We address the state's Oregon constitutional argument first. State v.
Rangel, 328 Or 294, 298, 977 P2d 379 (1999); State v. Maddux, 144 Or App 34, 38,
925 P2d 124 (1996). Section 9 protects a personal right to be free from unreasonable
searches and seizures. SeeState v. Wacker, 317 Or 419, 425 n 11, 856 P2d 1029
(1993) (a historical purpose of section 9 is to safeguard personal privacy rights); see
alsoState v. Munro, 96 Or App 238, 243, 772 P2d 1353 (1989). In general, we
presume that a warrantless entry and search of a private dwelling is unreasonable.
State v. Davis, 295 Or 227, 237, 666 P2d 802 (1983). We emphasize that the issue
before us is not whether the police violated Getzelman's rights but is, instead, whether,
in the absence of any other legal authority, the entry was forbidden over the objection
of defendant, for whom there was no arrest warrant.

Shortly after Jordan was decided, the United States Supreme Court held
that the Fourth Amendment requires only that an officer, under the authority of an
arrest warrant, have a reasonable belief that an arrestee is inside his or her dwelling
before making a non-consensual entry. Payton v. New York, 445 US 573, 603, 100 S
Ct 1371, 63 L Ed 2d 639 (1980) ("for Fourth Amendment purposes, an arrest warrant
founded on probable cause implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to believe the suspect is
within."). The court's statement in Payton is technically dictum, because the police in
Payton did not have an arrest warrant. Nevertheless, the Court later cited Payton as
controlling authority in a case in which the police did have an arrest warrant. Steagald
v. United States, 451 US 204, 214 n 7, 101 S Ct 1642, 68 L Ed 2d 38 (1981). The
state argues that Payton and Steagald portend a relaxation of the probable cause
requirement under section 9. We disagree.

Jordan relied primarily on Fourth Amendment decisions for its
constitutional analysis. More recently, however, the Oregon courts have eschewed the
practice of primary reliance on federal authority to interpret section 9. State v. Davis,
313 Or 246, 255, 834 P2d 1008 (1992) (Jordan's "Oregon constitutional analysis
discussed cases interpreting the Fourth Amendment rather more than has been our
recent practice.") (citation omitted). In Davis, the police entered the defendant's
mother's residence without a search warrant but held a valid warrant for the
defendant's arrest and had probable cause to believe he was inside when they entered
the residence. Although Payton and Steagald were decided before Davis, the Oregon
Supreme Court nonetheless followed its holding in Jordan, concluding that:

"The arrest--the seizure of defendant's person--was made pursuant to a
valid arrest warrant for defendant and with probable cause to believe
that defendant was on the premises. The arrest of defendant did not,
therefore, violate Article 1, section 9, of the Oregon Constitution." 313
Or at 255-56 (emphasis added).

Contrary to the view of the dissent and the state, we understand Davis to
confirm that, in the absence of a search warrant or other legal authority, probable
cause to believe that the subject of an arrest warrant is within is not merely sufficient
but is also necessary, to authorize police entry into a dwelling in which another person
is a resident. Because Davis followed the "Jordan holding," id. at 255, it is important
to understand that holding in its proper context.

It is true that in Jordan, the Supreme Court concluded that police
officers had probable cause to believe that the arrestee was inside the dwelling that
was searched. Jordan, 288 Or at 402-03. Therefore, it was not necessary for the court
to decide whether a lesser degree of belief or suspicion would suffice in order to
authorize entry. However, the court left little doubt that probable cause was necessary
to the result of that case. As noted, the court stated that constitutional rights will be
protected as long as an arrest on private premises is supported by a valid arrest
warrant and "probable cause to believe that the arrestee is within the premises." Id. at
401-02.

Although the court's statement was technically dictum, it does not follow
that it is of no legal import. State v. Aguilar, 139 Or App 175, 180 n 2, 912 P2d 379,
rev den 323 Or 265 (1996). Occasions on which this court has chosen to disregard
dictum in Supreme Court decisions have generally been limited to circumstances in
which we conclude that a statement is clearly incorrect. See, e.g., Norden v. Water
Resources Dept., 158 Or App 127, 134, 973 P2d 910, rev allowed 328 Or 594 (1999);
Turczynski v. Grill, 134 Or App 351, 355 n 5, 895 P2d 787 (1995). In this case,
despite the dissent's carefully reasoned reliance on federal authority, we cannot say
that the Supreme Court's statement in Jordan is clearly incorrect under the Oregon
Constitution. Although the Supreme Court may or may not decide to retreat from its
statements in Jordan and Davis, it is not our place to do so.

In this case, the state claims no authority for entry other than reasonable
suspicion to believe that Getzelman was inside the residence. Because defendant, a
coresident of the premises, objected to police entry--that entry was forbidden under
such circumstances. The evidence against defendant, namely, the presence of her son,
would not have been discovered had the officers not violated section 9, and it was thus
properly suppressed. State ex rel Juv. Dept. v. Rogers, 314 Or 114, 119, 836 P2d 127
(1992). Because the Oregon Constitution requires that we affirm the trial court's
decision, we do not reach defendant's alternative arguments for suppression.

Affirmed.

LINDER, J., dissenting.

The majority holds that police may enter a suspect's home with an arrest
warrant only if they have probable cause to believe that the person named in the
warrant is present on the premises at the time. The majority arrives at that conclusion,
not because it views that result to be required by Article I, section 9, of the Oregon
Constitution, but because, in the majority's view, prior Oregon Supreme Court cases
already have so held. I disagree. The precise level of suspicion that police must
possess in this circumstance--i.e., probable cause versus reasonable suspicion--is, in
my view, an open question. I would resolve that issue by holding that reasonable
suspicion is enough.

Contrary to the majority's understanding, neither State v. Jordan, 288 Or
391, 605 P2d 646, cert den 449 US 846 (1980), nor State v. Davis, 313 Or 246, 834
P2d 1008 (1992), is controlling. In Jordan, the police had a valid arrest warrant for
Sandra Jordan, the defendant's sister, and went to the defendant's residence to execute
the warrant based on information that Sandra Jordan was staying there. 288 Or at 393.
The officers entered the residence without exigent circumstances, without consent,
and without a search warrant. The defendant was charged with hindering prosecution
and moved to suppress evidence that Sandra Jordan was found in the home. Id. at
393-94. The Supreme Court identified the question before it as "whether a police
officer may enter a private dwelling to execute an arrest warrant without obtaining a
search warrant," id. at 393, and held that a search warrant is not constitutionally
required. Id. at 401-02.

The court cast its holding in terms that, I agree, at least can be
understood to require that police have probable cause:

"We believe that constitutional rights will be protected as long as any
arrest on private premises is supported by the judicial authorization of an
arrest warrant and the police officer's probablecause to believe that the
arrestee is within the premises." Id. (emphasis added).

My primary disagreement with the majority is that it views the issue as
foreclosed from examination and resolution when it is not. I do not know how the
majority would resolve the legal issue if it considered itself free to do so, so I do not
know if I disagree with the majority on that score. But I do believe that the answer the
majority gives is wrong, and I will briefly explain why.

"An arrest warrant is validly issued only when a magistrate is convinced
that there is probable cause to believe that the named party has
committed an offense. This determination, together with the inherent
mobility of the suspect, would justify a search for the suspect provided
the authorities reasonablybelieve he could be found on the premises
searched." Id. at 401 n 8 (emphasis added; quoting United States v.
McKinney, 379 F2d 259, 263 (6th Cir 1967)).

1. Probable cause means that "the facts upon which the warrant is premised must
lead a reasonable person to believe that seizable things will probably be found in the
location to be searched." State v. Anspach, 298 Or 375, 380-81, 692 P2d 602 (1984)
(emphasis added). The courts determine whether a belief is reasonable by reference to
the "totality of the circumstances * * * at the time and place" in question. State v. Belt,
325 Or 6, 10-11, 932 P2d 1177 (1997).

2. The state contends that "[t]he court in Jordan did not consider whether [the
arrestee] resided in the residence." That assertion is inaccurate. The court expressly
noted that defendant and the arrestee resided in the house in which the challenged entry
occurred. Id. at 393.

3. In Davis, the court merely reaffirmed its prior holding in Jordan for purposes
of an independent analysis under Article I, section 9. As was true in Jordan, the court in
Davis held that the officers entered the suspect's home with probable cause to believe he
was there. 313 Or at 255-56. Thus, as in Jordan, the court in Davis neither needed to
decide, nor said it was deciding, the minimum level of suspicion needed for a lawful
entry into a suspect's home to execute an arrest warrant.

The court in Jordan also discussed, with seeming approval, the approach of the
ALI Model Penal Code of Pre-Arraignment Procedures, which similarly permits entry
into a suspect's home to execute a valid arrest warrant upon "reasonable cause" to believe
that the suspect will be found there. Jordan, 288 Or at 398-99 n 6.

5. Route identifies the Ninth Circuit as the only circuit that requires probable
cause in this circumstance. Route, however, was wrong in that observation. The Ninth
Circuit also holds that reasonable suspicion to believe that the person is on the premises
suffices to permit entry to execute a search warrant. United States v. Litteral, 910 F2d
547, 554 (9th Cir 1990); United States v. Ramirez, 770 F2d 1458, 1460 (9th Cir 1985).
Significantly, defendant does not cite any authority to the contrary, nor does he provide
any analysis of why a probable cause standard better serves the values to be protected
under Article I, section 9. Rather, defendant's only argument is that Jordan and Davis
resolve the question in his favor.

6. In relying on federal cases decided under the Fourth Amendment, I do not
suggest that Oregon should follow those decisions just because they are federal. See,
e.g., State v. Caraher, 293 Or 741, 748, 653 P2d 942 (1982) (the court "has independent
responsibility to interpret [A]rticle I, section 9"). But neither should Oregon disavow a
rule adopted by federal courts just because the federal courts arrived at it first. If federal
decisions are sound and appropriately reflect the values served by our own constitutional
provisions--and here those decisions do--then the rule is appropriate for us to adopt as
well.